dissenting.
I dissent. The elaborate and extensive opinion of the Court convinces me that we erred in People v. De Jesús, 70 P.R.R. 36, in attempting to sustain the constitutionality of § 4 of Act No. 220 of 1948, the Bolita Act, by inserting therein, by way of interpretation, phrases which the Legislature had expressly eliminated from § 4 of Act No. 25 of 1985. Now it is sought to cure the error committed in People v. De Jesús, by saying that in that case we did not mean what we said but that we meant to say something different. It seems to me that the whole question is reduced to a word-juggling refrain such as the old Spanish saying that “Where I say say, I do not say say but I say Sam”. This time I refuse to concur in that reasoning.1
In construing a criminal statute, this Court has ample authority to endeavor to ascertain the true legislative intent, *52when approving the Act.' But, in my opinion, not to the extent of inserting words which, - on the contrary, are not contained in the Act or were, expressly omitted by the Legislature, or to change one word for another in order to make criminal an offense that was not clearly and expressly defined. The legislative intent became manifest when it eliminated said words from § 4 of the Act and when it used the disjunctive “or,” not only in § 4 but also in other Sections of the Act.
Narrowing the question to this simple aspect of the matter involved, there is no need to cite numberless authorities and adjudged cases in order to reach the inevitable conclusion that courts can not, under the guise of construction, legislate. It is true that at times the courts legislate — “interstitially” as Justice Holmes said — but such is not the case herein.Here this Court is flagrantly legislating, creating a specific offense where the statute, either through inadequate language or because such was the legislative intent, failed to establish an offense, or better still, made punishable criminal as well as innocent acts.
In People v. De Jesús, supra, our holding was that the intent of the Legislature was “to prohibit the carrying, using, transporting or possessing those objects [enumerated in § 4] when they have been utilized or are being utilized in connection with such games.” (Italics ours.)
The two italicized phrases are not found in § 4 of Act No. 220 of 1948, which, insofar as pertinent, provides:
“Any person caught carrying or transporting or who has in his possession for any reason any papeleta, billete, ticket, notebook, list of numbers or letters, slips, or implements which■ can be used for the unlawful games of bolita, bolipool, combinations connected with the pools or bancas of the racetracks of Puerto Rico, and clandestine lotteries, and any person who possesses, sells, or in any way transports these or any other similar ones which may be utilized or used in said unlawful games or connected with the practice thereof, shall be guilty of a public offense. . .” (Italics ours.)
*53Section 4 of Act No. 25 of 1935 (this Act was expressly repealed by Act No. 220 of 1948) on the contrary provided, insofar as material, that:
“Every person caught carrying or conveying any slip of paper, note, ticket, notebook, list of numbers, or implements, knowing that the same are used for the illegal games of ‘bolita’, ‘boli-pool’, clandestine combinations related to the pools of the hippodromes of Puerto Rico, and clandestine lotteries; and every person who buys them or any other similar ones which are proved to represent any ticket, chance, share, or interest in said illegal games or connected with the playing thereof, shall be immediately arrested, the corresponding complaint to be made. . (Italics ours.)
That the words “which can be used” and “which may be utilized or used,” contained in Act No. 220 of 1948, do not mean the same as the words “that the same are used” of Act No. 25 of 1935, is beyond any doubt. Nevertheless, in People v. De Jesús, supra, we said, erroneously, in my opinion, that the intent of the Legislature was exactly the opposite of the express provision of the Act. It is now stated, however, that what we meant to say in that case was not what we said but that “what we were in effect doing — and we now do so explicitly — was to read the italicized word ‘or’ as ‘and.’ ”
I do not agree. In People v. De Jesús, supra, nothing was said, argued or decided in connection with our authority to construe the word “or” as the equivalent of “and,” as it is used in § 4, supra. We merely inserted, by way of construction, certain phrases in said Section which had been expressly eliminated by the Legislature. It is now for the first time, and in order to save the statute from a new attack on its constitutionality, that the construction formerly given is abandoned to give way to a new construction whereby the conduction “or” is read as “and”. ,
But this change may be made, by judicial interpretation, when the intent of the Legislature is not clearly expressed in the Act. In other words, and insofar as penal statutes are *54concerned, they should be narrowly construed, that is, the crime should be clearly established by the legislative intent and not by judicial construction. Even in United States v. Alpers, 338 U.S. 680, cited in the opinion of the Court, it was held that “The language of the statute may not be distorted under the guise of construction, or so limited by construction as to defeat the manifest intent of Congress. United States v. Raynor, 302 U.S. 540, 552.” The only thing the court did in the Alpers case was to refuse to apply the rule of ejusdem generis in interpreting the criminal statute involved therein.2
I believe that by construing § 4 as it does in this case, the Court is distorting the language used by the Legislature in order to cure the constitutional defect from which it suffers. If the. Legislature deliberately eliminated from § 4 the requirement that it was necessary for the implements to be used in the illegal games specified and instead used the words “which can be utilized or used” in said illegal games, and in other Sections of Act No. 220 used the phrase in the alternative,3 that is, if the direct connection of the implements with the game was eliminated, as a sole requirement, and was replaced by the possibility that they could be utilized or used for the said illegal purpose, it is not within the province of this Court to say, under the guise of interpretation, that the Legislature intended where it used “or”, for the latter to be read as if it were “and”. The language used by the Legislature is clear and unambiguous. Therefore, the cases cited in the opinion of the Court to the effect that due process of law requires every statute to define a crime clearly and with *55certainty are in pointy Cantwell v. Connecticut, 310 U.S. 296; Pierce v. United States, 314 U.S. 306; Lanzetta v. New Jersey, 306 U.S. 451; Winters v. New York, 333 U.S. 507, and cases cited in footnote 2 of the opinion of the Court. Of particular application is the language used, in the cited case of Fairmont Co. v. Minnesota, 274 U.S. 1, 10, to the effect that: “It is not permissible to enact a law which, in effect, spreads an all-inclusive net for the feet of everybody upon the chance that, while th,e innocent will surely be entangled in its meshes, some wrong-doers also may be caught,” as to permit such a statute to stand would be to violate the mandate of the Winters case to the effect that “Where a statute is so vague as to make criminal an innocent act, a conviction under it cannot be sustained.”
In my judgment, none of the five rules on statutory construction cited in the opinion of the Court are applicable to this case inasmuch as the language of § 4 is clear and the legislative history of Act No. 220 of 1948 in comparison with Act No. 25 of 1935 shows the true purpose of the Legislature in enacting said § 4. In contradiction to the holding of the Court, I believe that the case of Yu Cong Eng v. Trinidad, 271 U.S. 500, is applicable to the instant case precisely because we are not justified in reading § 4 contrary to its terms in view of its history and the entire context of Act No. 220 of 1948.4
I realize perfectly well what it means, from a social standpoint, to declare that § 4 of the Bolita Act is void. However, it is for the Legislature to correct the deficiencies in Act No. *56220 of 1948, and the courts should not be required to do so under a rule of construction which is equivalent to improper judicial legislation 5 when it is evident from the context of the statute and its legislative history that, by error or inadvertence, the Legislature failed to define clearly the offense and by failing to do so, it jeopardized the liberty of .persons who may possess or transport materials entirely innocent but which “could be utilized or used” in connection with the prohibited games.
The judgment should be reversed.
It seems only fair to recall that in People v. De Jesús, supra, we stated that: “The appellant cites no authority to support the alleged unconstitutionality of the Act.” In other words, it is really in People v. Almodóvar, ante, p. 19 and in the instant case, that we have had the benefit of the parties’ briefs where the constitutional question is amply and conscientiously discussed.
In- § 2, the phrase “or which may be used” was added to the phrase “being used.” In § 6, the words “that may be used and distributed in the operation of the illegal games” were substituted by the words “which can be or is used,” and the second paragraph of 5 6 reads in part: “which may have been or which can be used.” That is, these Sections show the creation in the alternative, of two crimes, in using the disjunctive “or”. It cannot be logically said that, in § 4, the Legislature intended the “or” to mean “and.”
These decisions merely reiterate the provision of our own Codes with respect to statutory construction. Thus, § 14 of the Civil Code provides that “When a law is clear and free from all ambiguity, the letter of the same shall not be disregarded, under the pretext of fulfilling the spirit thereof.” And § 388 of the Code of Civil Procedure provides that “In the construction of a statute or instrument, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.” (Italics ours.)
I realize that in Pérez v. District Court, 69 P.R.R. 4, 17, footnote 5, referring to judicial legislation, we said that “It is frequently a semantic device used by those who do not like the result reached by a court engaged in the task of ascertaining the meaning of a statute. Those who find the result more pleasing call'it ‘judicial interpretation.’ ” In this case it is not that I do not like but rather that I do not agree with the result reached by the Court, for I think that the opinion is a perfect example of judicial legislation.